Abstracts Nr 2, 2014

 

Valentin Constantin, The new draft-law to amend the Constitution and human rights 

Abstract: In February of this year, the Constitutional Court ruled on a new draft-law to amend the Constitution proposed by a group of Senators and Representatives. The draft-law includes, inter alia, several amendments regarding fundamental rights. I will comment here on four positions of the Constitutional Court. The first is an alarming example of political-legal theory that does not support the solution argued for. Then I will talk about a serious violation of the amendment boundaries, which proves the low level of commitment of party elites to the rule of law. The authors of the draft-law intended to also amend the norms of a fair trial. The amendment related to evidence in a criminal trial was taken out by the Court in an authoritarian manner, without adequate justification. Finally, I will highlight an amendment proposal related to judges’ liability when judicial errors are committed. Unfortunately, the Court did not reject de plano the idea of a liability of judges when such errors happen.

Keywords: Constitution, amend, fair trial, adequate justification, judicial error, Constitutional Court

 

Carmen Achimescu, The review of acts of international bodies by Strasbourg judges

Abstract: The Jurisprudence of the European Court for Human Rights (ECfHR) has proven that neither the participation in international life, nor the transfer of competency to international bodies exempts the State from the obligations undertaken through ratifying the European Convention on Human Rights. The review by the ECfHR of derivative norms created within international legal systems is a clear proof of this fact. This review is indirect, based on a domestic law implementing the derivative norm, and not on the derivative norm itself; furthermore, the shape of the review varies according to the circumstances of each case. The national margin of appreciation granted to the State in implementing international law, as well as the level of protection of human rights within a given international legal system, are flexible concepts used by the Court to justify the variation in its review of compatibility. Thus, the Court in Strasbourg was able to establish and maintain a presumption of protection of human rights equivalent to that granted by the ECfHR relative to the former first pillar of the legal order in the European Union; the Court refused to expand this presumption to the entire legal system of the European Union or to other international legal systems.

Keywords: European judge, margin of appreciation, equivalent protection, international bodies, European Convention on Human Rights 

 

Gabriel Andreescu, A few concepts from the Final Report of the Wiesel Commission

Abstract: The study analyses the effects of some of the conceptual choices made by the Final Report of the International Commission for the Study of the Holocaust in Romania on the understanding of the interwar anti-Semitic phenomenon, and proposes a new point of view. Moving away from the established definition of the Holocaust, I chose to define the Holocaust as the „genocide of Jews”, which covers in the Romanian case the criminal acts in Transnistria between 1941 and 1943. I showed that the insistence on the continuity of anti-Semitism in Romanian history can obscure the significant opposite attitudes that contributed to the emancipation of Jews in the `20s. I highlight the attempt in the Final Report to construct the notion of an „anti-Semitic Romanian ethno-cultural identity”. To prove the aspirations towards modernity of the political elite that had led Greater Romania until 1937, the study notes the adoption and implementation of fundamental laws (namely the Constitution, the Law for Religious Denominations), which had a substantive impact on the integration of the Jewish community. This modernizing elite had to face a powerful nationalistic-Orthodoxist, anti-Semitic backlash that managed to achieve domination of public life after 1937. One result of this conceptual reconstruction is a division of interwar history into four stages: the years of societal anti-Semitism, of institutionalized anti-Semitism, of institutionalized anti-Semitic anarchy and the Holocaust.

Keywords:: anti-Semitism, Holocaust, societal, Final Report, interwar, International Commission for the Study of the Holocaust in Romania

 

Aurora Ciuc─â, Aspects of the self in the public mirror

Abstract: The study addresses the issue of the self-definition of the individual in public life from a legal point of view, as a right to one own’s image, part of the right to private life. The current meaning of ”private life” goes beyond the initial limits drawn by family life or respect for home or correspondence and has expanded to include the person’s body, emotions and any other personal characteristics that reach public life without consent or distorted. To this are added the private characteristics disclosed publicly by individuals attempting to create a public identity. The study discusses: the self as otherness, the alien that redefines and reconstructs identities at both individual and community level; the virtual self, and the new issue of the removal of the „digital past” ; the commercialized body and the conflict between multiple ”self images”; the altered body, e.g. transsexuality, as a psychological feeling of belonging to the opposite gender; the body as a (re)construction and the issue of the ”dictatorship” of image; the self as freedom versus the fragmentation of the person into little pieces that cannot be remolded into the real image.

Keywords: self, public image, private life, otherness, transsexuality, virtual space, commercialized body, dictatorship of image, Internet